Keep Calm and Carry On: The Trump Administration, the New High Court, and the Second Amendment

To say the first few weeks of the Donald J. Trump presidency has been eventful would be an understatement. Indeed, some may go as far to use adjectives such as chaotic, disorganized, and downright frightening.

The administration has been busy combating wide-ranging issues (and controversies) regarding the President’s hastily put together executive order banning refuges and immigrants from predominately Muslim nations, the confirmation of Betsy DeVos, Senator Jeff Sessions, as well as the various ethical conundrums he and his family have placed themselves in.

Trump and the Second Amendment

One issue that seems to have been overlooked is a statement issued by the President shortly after he was inaugurated.  Appearing under the headline “Standing Up For Our Law Enforcement Community” the President issued a statement on the White House’s official webpage, asserting that “supporting law enforcement means supporting our citizens’ ability to protect themselves. We will uphold Americans’ Second Amendment rights at every level of our judicial system.” President Trump’s statement came after months of pro-Second Amendment rhetoric by then-candidate Trump. Though the political climate in Washington has not been focused on major gun issues since Trump took office, the recent nomination of federal appellate judge Neil Gorsuch may potentially bring the Second Amendment back into the national spotlight.

Gorsuch and the Second Amendment

Judge Gorsuch is a Coloradan with a love of the outdoors, a trait he shared with the late Justice Scalia. Gun-rights groups praised the selection, believing Gorsuch to be a fierce protector of the Second Amendment.

A love of the outdoors is not the only passion Judge Gorsuch shared with Justice Scalia. According to commentators, the two jurists share not only a flair for writing vivid opinions, but a similar philosophy regarding constitutional interpretation. In fact, Judge Gorsuch’s commitment to originalism could make his nomination to the High Court all the more significant considering the current circuit split within the federal judiciary regarding whether an individual possesses a constitutional right to carry a firearm outside of the home.

In 2008 and 2010, the Supreme Court decided District of Columbia. v. Heller, and McDonald v. Chicago, respectively. In Heller, in an opinion written by Justice Scalia, the Court held the Second Amendment guarantees an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Two years later, in McDonald,  the Court incorporated the Second Amendment against the States via the Fourteenth Amendment. These decisions resulted in several cases being filed across the country testing the limits of the Amendment. The results have left a definite Circuit split regarding whether an individual possesses a right to carry a firearm outside the home, and specifically, whether “may issue” licensing schemes are unconstitutional.

Background on the Second Amendment

The text of the Second Amendment to the Constitution states: “A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”

Early judicial decisions by the Supreme Court construed the Amendment narrowly. In United States v. Cruikshank, the Court ruled that, “the right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence.” The Court added that the Second Amendment is limited only to restrict the powers of the national government. The Court’s limited reading of the Second Amendment would continue well into the Twentieth-Century.

In United States v. Miller (1939), two defendants filed a demurrer, challenging the relevant section of the National Firearms Act as an unconstitutional violation of the Second Amendment. Writing for the Court, Justice McReynolds held that the shot-gun regulations proscribed by the National Firearms Act and the illegal interstate transportation of it was in no-way connected to the defendants’ service in a militia:

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

However, in the pivotal case District of Columbia v. Heller, the Court held that the Second Amendment guarantees an individual’s right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purpose, such as self-defense within one’s own home, as respondent Dick Heller, sought to do. Justice Scalia devoted a significant portion of his opinion to analyzing the linguistic nature of the operative clauses, “right of the People” and “keep and bear arms.” Justice Scalia concluded that all the textual elements as well as the historical background of the amendment guarantee the individual right to possess and carry weapons “in case of confrontation.” He added that like the First and Fourth Amendments, the Second Amendments codified a pre-existing right.”

The Split: A Shootout within the Circuit Courts

Heller and McDonald, while constitutionally important cases, only determine half the issue. While the Supreme Court has vindicated the right to possess a firearm for the purpose of self-defense in the home, the Court has yet to declare a concomitant right outside of the home.

The Second Circuit

Shortly after the decision in McDonald, two New York plaintiffs as well as the Second Amendment Foundation, sought injunctive relief in the Southern District of New York, White Plains division.

The plaintiffs originally sought an injunction barring the handgun licensing authority from enforcing a New York law requiring handgun carry permit applicants to demonstrate “proper cause” for the issuance of concealed carry permits. The case was a direct challenge to New York’s “may-issue” system of concealed carry firearm licensing.  The defendants filed a motion to dismiss, which was denied by the court, and set a hearing to hear plaintiffs’ motion for summary judgment. On September 2nd, 2011, the court denied the motion, and simultaneously granted the defendant’s cross-motion for summary judgment in their favor.

The court, in applying intermediate scrutiny, found that the “good cause” requirement promotes and is substantially related to the government’s strong interest in public safety and crime prevention. On appeal, the Second Circuit, in Kachalsky v. County of Westchester affirmed the lower court opinion on similar grounds. Furthermore, the court noted that restrictions on firearms in New York law predate the ratification of the Constitution.

After losing at the Second Circuit, the appellants filed a petition for certiorari with the United States Supreme Court. However, certiorari was denied, as expected by some legal observers. It has been suggested that the Court will eventually hear a case like it, as the Circuit Courts are divided in their opinions on the issue of public handgun carry permit policies.

The First, Fourth, and Ninth: Sisters-in-Arms with the Second

Woollard v. Gallagher was initially decided in favor of the plaintiff seeking to renew a concealed carry permit in Maryland. The Fourth Circuit Court of Appeals decided the case along the same lines of reasoning as the Second Circuit in Kachalsky. Both the First and Ninth Circuits have similarly declined to expand the Second Amendment to include a right to possess a firearm outside of the home, with the Ninth Circuit in Peruta v. San Diego concluding that “Second Amendment right to keep and bear arms does not include, in any degree, right of member of general public to carry concealed firearms in public.”

The Smoking Barrel: Posner Resurrects the “outside the home” Theory

However, in the Seventh Circuit, the court ruled in Moore v. Madigan that Illinois’s no-issue permit policy was unconstitutional. Judge Posner wrote that while both Heller and McDonald noted that the “the need for defense of self, family, and property is most acute” in the home, that does not mean that it is not acute outside the home.

Specifically, Jude Posner focused Scalia’s framing in Heller of the Second Amendment as granting one a right to carry or possess a firearm in times of confrontation.

“[C]onfrontation is not limited to the home . . . one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.”

The Seventh Circuit concluded that Illinois would need to demonstrate to the Court more than a rational basis for believing that its ban is justified by an increase in the public safety.

Looking Forward

The circuit split, while not being wide spread, could find itself extremely relevant considering the current political climate surrounding the Trump administration and the nomination of Judge Neil Gorsuch to the Supreme Court.

If confirmed, Gorsuch would be the necessary conservative vote to expand the Second Amendment’s protection to gun-owners looking to carry their firearm outside the home. Such a decision, while being celebrated by libertarians and gun-rights advocates, could have enormous and far reaching consequences in a wide variety of contexts, not limited to tort and product liability law, public safety, and policing.

Likely, even if the Court would announce such a right, it would hardly be the end of litigation attempting to fine tune and clarify the expanse of the Second Amendment. An avalanche of litigation within state and federal courts could consume the judiciary for years to come. Complicating the split is the fact that, while the weight of the circuit split falls in favor of a narrower reading of the Second Amendment, the courts that decided those cases largely sit within judicial circuits that have a more urban population. Courts that may agree with the Seventh Circuit may not even face the issue, as the relevant jurisdictions allow some form of concealed carry.

Nevertheless, the Court should hear the issue: Second Amendment rights are not second-order rights, and citizens (and legislatures) across the country deserve a clear statement of the law.